NOT DESIGNATED FOR PERMANENT PUBLICATION

 

STATE LAW ENFORCEMENT BARGAINING COUNCIL, APPELLEE,

v.

STATE OF NEBRASKA, APPELLANT.

OPINION OF THE NEBRASKA COURT OF APPEALS

Filed May 22, 2007, No. A-05-693

Appeal from the Nebraska Commission of Industrial Relations. Reversed.

Jon Bruning, Attorney General, and Jodi M. Fenner for appellant.

Vincent Valentino, of Angle, Murphy, Valentino & Campbell, P.C., for appellee.

SIEVERS and CASSEL, Judges, and HANNON, Judge, Retired.

SIEVERS, Judge.

      This is an appeal from a judgment of the Commission of Industrial Relations (CIR) ordering the certified bargaining unit for employees of the State Law Enforcement Bargaining Council (SLEBC) to be modified to include the positions of staff supervisor and conservation officer supervisor, employed by the Game and Parks Commission (GPC). The State assigns as error the CIR's finding that the staff supervisor and conservation officer supervisor positions were not statutory supervisors and that they should be included with the other state employees in the State Law Enforcement Bargaining Unit pursuant to Neb. Rev. Stat. § 81-1373(1)(g) (Cum. Supp. 2006). We find that the CIR erred in not finding that the contested positions were statutory supervisors. Therefore, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

      The SLEBC filed a petition on October 13, 2004, seeking an order to clarify or amend a collective bargaining unit comprising state law enforcement employees holding powers of arrest, as set forth in § 81-1373(1)(g). The State filed an answer on November 3, 2004, asserting as an affirmative defense that the six contested positions in the GPC are supervisors under Neb. Rev. Stat. § 48-816(3) (Reissue 2004) and therefore should be excluded from the proposed bargaining unit.

      A preliminary proceeding was held on November 24, 2004. The CIR ordered that a pretrial conference would be held on January 11, 2005, and that said conference would be "conducted in accordance with Rule 22 and the parties shall fully comply with the provisions set forth therein." The State submitted an amended exhibit list to the SLEBC, and the State filed the amended exhibit list with the CIR on January 10.

      At the pretrial conference on January 11, 2005, the State offered exhibits 12 through 164 and the SLEBC made no objections to the contents of the exhibits. The parties stipulated that the issues were (1) "[w]hether the six Conservation Officers/Supervisors should be included with the other state employees in the State Law Enforcement bargaining unit pursuant to . . . § 81-1373(g) or are these Conservation Officers/Supervisors as defined under NEB. REV. STAT. § 48-801(9)" and therefore "should be excluded from the Law Enforcement bargaining unit pursuant to . . . § 48-816(3)(a)" and (2) "[w]hether the Conservation Officers/Supervisors are considered `similar classes' to be included with the [Nebraska State Patrol] sergeants in the bargaining unit."

      The CIR held a hearing on February 11 and 22, 2005. The State offered exhibits 12 through 164, which were received without objection, and the SLEBC offered exhibits 1 through 11 and 165, which were also received.

      The evidence reveals that in February 2003, the GPC attempted to obtain a reclassification of the conservation officer supervisors to raise their pay grade. Each of the conservation officer supervisors completed a "Comprehensive Position Questionnaire" (CPQ), had input from upper management, and signed the CPQ. At the suggestion of upper management, the CPQ's were amended to include information related to direct expenditure approval and financial responsibilities of the conservation officer supervisors. The conservation officer supervisors testified that at the time they completed the CPQ's, they believed that their CPQ's were appropriate and truthful. In May 2003, the State's personnel division denied the conservation officer supervisors and the staff supervisor a change in pay grade. In October 2004, the SLEBC filed a petition to clarify or amend the bargaining unit. The conservation officer supervisors and the staff supervisor are now contending that they do not have as much supervisory responsibility as they did in 2003, even though there is no evidence that the duties of the positions changed or that the positions lost any authority as of the hearing in February 2005.

Staff Supervisor.

      Dana Miller currently holds the position of staff supervisor. The record reflects that her duties include the following: coordinating homeland security for the GPC; training new conservation officers, who are employed at the rate of approximately one new trainee per year, for a 6-month period; filling in as an interim district supervisor; performing an evaluation of the training employee; keeping track of certifications of all the conservation officers and conservation officer supervisors, including setting up training meetings; purchasing items without a purchase order in the amount of $300 or less; conducting background checks; and assisting in training exercises as an evaluator.

      In February 2003, Miller completed a CPQ. Regarding the staff supervisor's position's purpose, Miller wrote:

As the Staff Supervisor my essential purpose is to plan, coordinate, direct and participate in law enforcement training . . . to include scheduling and documenting trainer certification, organizing and preparing in-service training [and] act as interim district supervisor, supervising work activity, work hours, reporting processes, coordinating work assignment, special enforcement details and evaluating Officer job performance . . . .

      Miller also wrote that on a daily basis, she supervises and coordinates all training activities across the state with trainers and field officers, assigns leave and days off, and reviews for accuracy all data entry process, including written activity, expenditure reports, case reports, arrest records, racial profiling reports, invoice logs, and purchase recommendations. On cross-examination, Miller admitted that her statement in her CPQ that her "supervisory duties require independent decision making" was truthful. Miller also indicated in the CPQ that she would not describe her supervisory duties as "routine" or "clerical" or as a "lead worker." In the CPQ, Miller listed 17 conservation officers by name that she directly supervises either full time or part time, the majority of which have job titles such as "instructor" or "field training officer."

      Miller's 2004 performance plan and evaluation as a staff supervisor included many of the same duties that Miller self-reported in the CPQ, acknowledging the fact that 50 percent of Miller's time should be spent in planning, coordinating, supervising, directing, and participating in law enforcement training functions and that one of her duties is to serve as an interim or fill-in district supervisor, which included directing work performance, making assignments, and initiating corrective actions.

      Contrary to Miller's statement in the CPQ and the duties listed in the performance plan, Miller testified, "[A]lthough my title is staff supervisor, I basically make recommendations, and every decision I make . . . the majority of the decisions have to be approved by [administration] before I can initiate those actions." Nevertheless, during cross-examination, in response to the question whether the staff supervisor duties require independent decision making, Miller admitted that such was a true statement.

      The SLEBC presented evidence that in November 2004, following the U.S. Department of Labor's revisions to overtime regulations concerning "white collar" exemptions to the federal Fair Labor Standards Act, the staff supervisor position became nonexempt, because Miller did not meet the requirements of the "Administrative Exemption" test. A finding that the position of staff supervisor is nonexempt for purposes of the Fair Labor Standards Act does not dictate whether the position is or is not a "supervisor" under Neb. Rev. Stat. § 48-801(9) (Reissue 2004).

Conservation Officer Supervisors.

      It is undisputed that the director of the GPC makes the final determinations on hiring, promotions, and disciplinary actions. Nevertheless, the conservation officer supervisors all admitted in their testimony that they perform supervisory duties. Their testimony reflects that the responsibilities of the conservation officer supervisors include the following supervisory duties: give conservation officers guidance and direction when working side by side with them; review the weekly reports and the 28-day reports, which document the conservation officers' activities, and ensure that the reports are mathematically correct and consistent with the season and the responsibilities associated with that season; counsel the conservation officers if the hours reported in the weekly reports and 28-day reports are not consistent with the season and responsibilities associated with that season; authorize overtime typically not to exceed 1 to 3 hours of duty on a given day but, in the event of an emergency, authorize more overtime without approval from upper management; perform annual performance evaluations of the conservation officers, which evaluations are discussed with and approved by the conservation officer supervisors' respective assistant division administrators; meet with the conservation officers to review the content of the performance evaluations; authorize expenditures without a purchase order for $300 or less; disseminate information to the conservation officers given to the conservation officer supervisors during their quarterly meetings with their supervisors, the assistant division administrators; assign conservation officers to special details within their districts, including the time, place, and objective of such details, i.e., setting a decoy deer during deer season or checking overbag fish limits during the summer; approve leave or time off; maintain adequate staffing; mitigate grievances brought by conservation officers; answer questions about regulations, changes, or proposed programs; oversee and have responsibility for the equipment of the conservation officers; and document work performance issues and recommend remedial programs or training when necessary. Conservation officer supervisors also perform the same tasks as the conservation officers, including the following tasks: write tickets, prepare and present radio and television programs and maintain contact with newspapers and local media, testify in court, use confidential informants, and perform various other field activity duties.

      Duane Arp's performance plan from January 5, 2004, to January 5, 2005, set forth the following as his primary duties: "[p]lan, coordinate, supervise, direct and participate in all conservation law enforcement activities in assigned district" and "[e]ffectively supervise the employees under his/her supervision." In direct testimony, Arp testified that he directs the conservation officers in his district and provides direction and guidance to the subordinates. Arp succinctly wrote in his CPQ that his position's purpose "is the planning, supervising and directing of district law enforcement functions to include, work activities, schedules, work hours, officer evaluations, reporting process, equipment inventories, and allocation of personnel to ensure adequate coverage . . . of eleven full time conservation officers." Arp indicated in his CPQ that on a daily basis, he supervises and coordinates the law enforcement activities of all 11 conservation officers in his district. Arp admitted in his CPQ that his supervisory duties require the use of independent judgment and would not be described as routine or clerical. Arp also wrote the following in his CPQ:

Due to the nature of duties of conservation officers and the importance of self initiative and flexibility it is crucial that the law enforcement supervisor have the flexibility and capabilities to analyze problems and complaints without guidance or prior approval from the next level of administration. I am the only supervisory position in the chain of command between 11 field officers and administration.

      Contrary to James Zimmerman's testimony at the hearing that a lot of his work reviewing reports, "weeklies," and "monthlies" was routine or clerical in nature, Zimmerman indicated in his CPQ that his supervisory duties require the use of independent judgment, that such duties were not routine or clerical, and that he was not a lead worker. Zimmerman also wrote in his CPQ that his position's purpose was to "[s]upervise 9 state certified Conservation Officers in a 16 county area," as well as to deploy personnel, evaluate job performances of subordinates, oversee equipment issued to officers within the district, plan daily operations within the district, and review and approve all work-related documents. Zimmerman noted that his daily tasks include supervising and coordinating all district law enforcement activities over a multicounty area with district field conservation officers and supervising and documenting individual conservation officers' work performance. Zimmerman also commented in the CPQ that his position as a supervisor requires him to make "independent decisions" in regard to the overall work activities within assigned districts and that the number of independent decisions had increased because of the high ratio of subordinates to supervisor and the expansion of the geographic areas.

      Thomas Zimmer testified that his nonclerical supervisory duties include discussing work activities with the conservation officers in the field. Zimmer also testified that during the past year, he had performance issues with one of his conservation officers and Zimmer counseled this conservation officer. Zimmer wrote in his CPQ that his position's purpose was to

[s]upervise 10 field Conservation Officers, two staff assistants and the overall law enforcement operations of the district which includes 23 counties . . . . I supervise the work activities, work hours, reporting process, maintain district equipment inventory, coordinate work assignments and special law enforcement projects, evaluate job performance of subordinates, [and] allocate personnel to ensure adequate coverage within the district . . . .

      Zimmer indicated in his CPQ that his supervisory duties required the use of independent judgment and were not routine or clerical in nature. Zimmer also wrote that he makes "decisions of a high level supervisor on short notice and without consulting administration." In Zimmer's March 2004 to March 2005 performance plan, his listed duties included planning, coordinating, supervising, directing, and participating in all law enforcement activities, as well as "effectively" supervising the employees under his supervision.

      Jerry Pecha wrote in his CPQ that he is "directly responsible for the planning, supervising and coordinating of all law enforcement functions of eight state and deputy federally credentialed conservation officers." Pecha indicated that his supervisory duties require the use of independent judgment, that such duties were not routine or clerical, and that he did not consider his position to be a lead worker. Pecha commented in his CPQ that he is "responsible for making independent decisions in a short time frame without input from higher ups."

      Roger Thompson wrote in his CPQ that his position's purpose was to supervise up to 10 conservation officers by monitoring and documenting work performance; establishing work schedules and making assignments; monitoring personal appearance and adherence to statutes, regulations, policies, and other guidelines; initiating corrective or disciplinary actions; and inspecting property and equipment assigned to personnel under his supervision. Thompson also commented in his CPQ that a "Conservation Officer Supervisor has to be adaptable to so many situations and make quick decisions without guidance or approval from administration."

CIR's Order.

      On May 3, 2005, the CIR filed its order finding that neither the position of conservation officer supervisor nor the position of staff supervisor was a statutory supervisor. Regarding the staff supervisor, the CIR found that her supervisory duties were routine and clerical in nature:

      Staff Supervisor . . . Miller runs the day-to-day operations of the training of new employees for the [GPC] Law Enforcement Division. However, this function of her job is only a very small portion of her duties. . . . Miller rarely has face-to-face contact with the new employees in training. While she does perform evaluations of the training employees, those evaluations have distinct parameters for her to follow in assessing each new hire's abilities. Each evaluation is thoroughly and independently reviewed and often changed by senior management. She does not effectively recommend actions for any of the new employees in training. . . . Miller does not possess the authority to hire, fire, suspend, lay-off, recall or promote.

. . . Miller is responsible for managing the proper completion of training and updating certifications. Although she manages this function, her function is routine and clerical in nature.

      Regarding the conservation officer supervisors, the CIR found that the conservation officer supervisors did not possess the authority to hire, fire, suspend, lay off, recall, or promote and that they often work side by side with the conservation officers and give the conservation officers "guidance and direction in their work." The CIR found that "[t]o the extent that Conservation Officer Supervisors direct the other Conservation Officers, their direction is routine in nature." The CIR further found:

The Conservation Officer Supervisor[s'] main function is to disseminate information to their local Conservation Officers, most notably because of the great distance geographically between the headquarters and the satellite district locations. These Conservation Officer Supervisors relay instructions, follow procedures, conform to contractual language, and perform the routine clerical work of double-checking the math in weekly schedules and in work activity reports. While the Conservation Officer Supervisors do perform evaluations of Conservation Officers, those evaluations have distinct parameters for them to follow in assessing the Conservation Officer's work. Each evaluation is thoroughly and independently reviewed and changed by senior management. To the extent that the Conservation Officer Supervisors direct other employees, their direction is routine in nature.

The CIR concluded that the conservation officer supervisors are not statutory supervisors.

      After finding that the conservation officer supervisors are not statutory supervisors, the CIR addressed the "similar classes" issue and found that under § 81-1373(1)(g), "the term `game warden' refers to the work that is actually performed by the Conservation Officers and the Conservation Officer Supervisors, even though the term `game warden' is not specifically included in the organizational structure" of the GPC. The CIR found that because of its finding that conservation officer supervisors and staff supervisor are not statutory supervisors, the "second sentence of § 81-1373(1)(g) has no application and the [CIR] need not construe the extent of any supervisory exception contained therein." Accordingly, the CIR included the staff supervisor and the conservation officer supervisors in the bargaining unit set forth in § 81-1373(1)(g). The State now appeals.

ASSIGNMENTS OF ERROR

      The State asserts that the CIR erred (1) both factually and as a matter of law, when it found that the positions of staff supervisor and conservation officer supervisor were not statutorily supervisory under § 48-801(9) and that the positions should therefore be included in the Law Enforcement Bargaining Unit set forth in § 81-1373(1)(g); (2) both factually and as a matter of law, when it admitted and considered the Fair Labor Standards Act determination of exemption of Miller and further determined that Miller is an "hourly employee" and not a supervisor; (3) when it disregarded its own rules by "declining to hold as true the facts stated in exhibits 12 through 164 pursuant to Rule 22," which exhibits established conclusively that the conservation officer supervisors and the staff supervisor responsibly directed conservation officers; (4) when it incorrectly relied upon a repealed version of § 81-1373(1)(g) in determining that conservation officer supervisors are of a "similar class" to "game wardens," because § 81-1373(1)(g) (Reissue 1999) was amended by 2003 Neb. Laws, L.B. 85, to change the reference to "game wardens" to more specifically reference "conservation officers"; and (5) when it found that the positions of investigative services sergeant and conservation officer supervisor were "comparable" or of a "similar class."

STANDARD OF REVIEW

      Any order or decision of the CIR may be modified, reversed, or set aside by an appellate court on one or more of the following grounds and no other: if the commission acts without or in excess of its powers, if the order was procured by fraud or is contrary to law, if the facts found by the commission do not support the order, and if the order is not supported by a preponderance of the competent evidence on the record considered as a whole. Hyannis Ed. Assn. v. Grant Cty. Sch. Dist. No. 38-0011, 269 Neb. 956, 698 N.W.2d 45 (2005); Crete Ed. Assn. v. Saline Cty. Sch. Dist. No. 76-0002, 265 Neb. 8, 654 N.W.2d 166 (2002).

ANALYSIS



      The first question before the CIR was whether the conservation officer supervisors and the staff supervisor should be included with the other state employees in the State Law Enforcement Bargaining Unit pursuant to § 81-1373(1)(g) (Cum. Supp. 2006) or whether these positions are supervisors as defined under § 48-801(9) and therefore should be excluded from the Law Enforcement Bargaining Unit pursuant to § 48-816(3)(a).

      Under § 81-1373(1)(g), an appropriate bargaining unit is a law enforcement unit composed of employees holding powers of arrest, including Nebraska State Patrol officers and sergeants, conservation officers, fire marshal personnel, and similar classes. Sergeants, investigators, and patrol officers employed by the Nebraska State Patrol as authorized in section 81-2004 shall be presumed to have a community of interest with each other and shall be included in this bargaining unit notwithstanding any other provision of law which may allow for the contrary.

      Section 48-801(9) provides that a supervisor is any employee having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not a merely routine or clerical nature, but requires the use of independent judgment.

      The language in § 48-816(3)(a) excludes "supervisors" from being in a single bargaining unit with any other employee who is not a supervisor unless otherwise provided. This language in § 48-816(3)(a) "unequivocally declares that except as otherwise provided, a supervisor shall not be included in a single bargaining unit with any other employee who is not a supervisor." PLPSO v. Papillion/LaVista School Dist., 252 Neb. 308, 312, 562 N.W.2d 335, 338 (1997). In PLPSO, the Nebraska Supreme Court "interpreted that language to mean that a single bargaining unit cannot include supervisors and those whom the supervisors responsibly direct." 252 Neb. at 312-13, 562 N.W.2d at 338. See, also, IBEW Local 1536 v. Lincoln Elec. Sys., 215 Neb. 840, 341 N.W.2d 340 (1983) (crew members and foremen required to responsibly direct them could not be included in same bargaining unit); Nebraska Assn. of Pub. Emp. v. Nebraska Game & Parks Commission, 197 Neb. 178, 247 N.W.2d 449 (1976) (finding supervisory or managerial personnel may not enter into bargaining unit with rank and file employees and may not retain same bargaining agent).

      Regarding the staff supervisor position's supervisory duties, Miller testified that her duties include training new conservation officers, who are employed at the rate of approximately one new trainee per year, and that such training lasts for 6 months. Miller admitted that she performs an evaluation of the training employee. Miller testified that she sets up training meetings for conservation officers. Miller admitted that she assists in training exercises as an evaluator. Miller also acts as an interim district supervisor when needed. Miller conducts the background investigations on eligible candidates for hire, which necessarily requires a certain level of confidentiality. Miller sets up training meetings and conducts training sessions with other trainers. This position clearly has supervisory responsibilities. Given that Miller admitted at the hearing that her statements in her CPQ were truthful, we quote from her own words about the essential purposes of her position:

      As the Staff Supervisor my essential purpose is to plan, coordinate, direct and participate in law enforcement training . . . to include scheduling and documenting trainer certification, organizing and preparing in-service training [and] act as interim district supervisor, supervising work activity, work hours, reporting processes, coordinating work assignment, special enforcement details and evaluating Officer job performance . . . .

      Also, in her CPQ, Miller admitted that her supervisory duties require independent judgment and that such duties were not routine or clerical in nature. Without a drastic change in the staff supervisor's supervisory duties and responsibilities, which is not shown by the record, Miller's statements regarding her supervisor duties in 2003 are reflective of her duties at the time of the hearing in 2005.

      With respect to the conservation officer supervisors, they admit that they have supervisory duties. The CIR found that such duties were routine and clerical and did not require independent judgment. As we detailed above, it is clear that the conservation officer supervisors' duties and responsibilities include the following: giving conservation officers guidance and direction when working side by side with them; reviewing the weekly reports and the 28-day reports, which document the conservation officers' activities, and ensuring that the reports are mathematically correct and consistent with the season and the responsibilities associated with that season; counseling the conservation officers if the hours reported in the weekly reports and 28-day reports are not consistent with the season and responsibilities associated with that season; authorizing overtime typically not to exceed 1 to 3 hours of duty on a given day but, in the event of an emergency, authorizing more overtime without approval from upper management. The conservation officer supervisors also perform annual evaluations of the conservation officers, which evaluations are discussed with and approved by the conservation officer supervisors' respective assistant division administrators located in Lincoln. But, it is obvious from the record that the GPC administration located in Lincoln does not observe the conservation officers in the field and thus relies almost completely on the conservation officer supervisors' observations and recommendations. Additionally, the conservation officer supervisors meet with the conservation officers alone to review the content of the evaluations without any upper level administrators. The conservation officer supervisors have the authority to purchase items for $300 or less and admitted that they are in fact responsible for the equipment of all the conservation officers. The conservation officer supervisors admitted that if the conservation officers have a question about what to do in a given situation, the conservation officers contact the conservation officer supervisors for guidance. Notably, the conservation officer supervisors also have the authority to assign officers to special details within their large districts and are responsible for the who, what, when, and where of such details. They also approve leave and ensure that their districts have adequate staffing levels. The conservation officer supervisors admitted that they mitigate grievances and recommend remedial programs and training when necessary, as well as conduct such remedial programs and training with an individual conservation officer. While it is true that conservation officer supervisors also perform the same tasks as conservation officers, the conservation officer supervisors responsibly direct the conservation officers in their law enforcement activities. The conservation officer supervisors' exercise of such authority to direct the conservation officers is not merely routine or clerical; rather, they clearly employ their independent judgment.

      In addition to the staff supervisor's admission in her CPQ, we find the admissions from all of the conservation officer supervisors in their CPQ's to be extremely persuasive, because their CPQ's were prepared when the issue involved in this proceeding was not yet "on the table." The conservation officer supervisors admitted during the hearing that they were truthful in the CPQ's. While the SLEBC alleged that the CPQ's were "largely inaccurate" due to the upper management's suggestions and revisions, we do not agree with the SLEBC's allegation that the CPQ's failed to represent the true nature and responsibilities of the conservation officer supervisor and staff supervisor positions. Brief for appellee at 17.

      In the CPQ's, the conservation officer supervisors admitted that they have numerous supervisory duties and that such duties require independent judgment. Arp wrote that "it is crucial that the law enforcement supervisor have the flexibility and capabilities to analyze problems and complaints without guidance or prior approval from the next level of administration. I am the only supervisory position in the chain of command between 11 field officers and administration." Zimmer wrote that he makes "decisions of a high level supervisor on short notice and without consulting administration" and that he supervises 10 field conservation officers, two staff assistants, and "the overall law enforcement operations of the district which includes 23 counties." Zimmer also wrote, "I supervise the work activities, work hours, reporting process, maintain district equipment inventory, coordinate work assignments and special law enforcement projects, evaluate job performance of subordinates, [and] allocate personnel to ensure adequate coverage within the district . . . ." Pecha commented in his CPQ that he is "responsible for making independent decisions in a short time frame without input from higher ups." Thompson wrote that his position's purpose was to supervise up to 10 conservation officers "by monitoring and documenting work performance, establishing work schedules and making assignments, monitoring appearance and adherence to statutes, regulations, policies and other guidelines, initiating corrective or disciplinary actions, [and] inspecting property and equipment assigned to personnel under my supervision." Thompson commented in his CPQ that a "Conservation Officer Supervisor has to be adaptable to so many situations and make quick decisions without guidance or approval from administration." All of the conservation officer supervisors indicated in their CPQ's that their supervisory duties are neither routine nor clerical in nature and that they considered themselves more of a supervisor than a "lead worker." Based upon the record as a whole, we find that the conservation officer supervisors are, in fact, statutory supervisors. The mere fact that they also do GPC field conservation work does not mean that they are not supervisors.

      While the CIR concluded that the conservation officer supervisors and the staff supervisor are not statutory supervisors, we find that such a finding is not supported by a preponderance of the competent evidence on the record considered as a whole.

      Finally, we address the CIR's finding that conservation officer supervisors are comparable to Nebraska State Patrol sergeants and therefore exempted from the exclusion for supervisors provided under § 81-1373(1)(g). We first note that the CIR erred in relying on a repealed version of the statute--§ 81-1373(1)(g) (Reissue 1999), which was amended by 2003 Neb. Laws, L.B. 85. We use the current version, § 81-1373(1)(g) (Cum. Supp. 2006), which provides a bargaining unit for

      Law Enforcement, which unit is composed of employees holding powers of arrest, including Nebraska State Patrol officers and sergeants, conservation officers, fire marshal personnel, and similar classes. Sergeants, investigators, and patrol officers employed by the Nebraska State Patrol as authorized in section 81-2004 shall be presumed to have a community of interest with each other and shall be included in this bargaining unit notwithstanding any other provision of law which may allow for the contrary.

      Under the current version of § 81-1373(1)(g), conservation officer supervisors are not specifically mentioned. The precise and unambiguous language of § 81-1373(1)(g) provides that "[s]ergeants, investigators, and patrol officers employed by the Nebraska State Patrol," who shall be presumed to have a community of interest with each other, shall be included in the same bargaining unit notwithstanding any provision of the law to the contrary. Thus, except for the specific exemption under § 81-1373(1)(g) relating to the State Patrol within the Law Enforcement Bargaining Unit, supervisors are excluded by statute under § 48-816(3)(a). Whether conservation officer supervisors are within the purview of § 81-1373(1)(g) is controlled by the rule of statutory construction "expressio unius est exclusio alterius" (the expression of one thing is the exclusion of another). See PLPSO v. Papillion/LaVista School Dist., 252 Neb. 308, 314, 562 N.W.2d 335, 339 (1997). In PLPSO, the Nebraska Supreme Court applied this principle of statutory construction to § 48-816(3)(c), which provides for the exemption of certain administrators in Class V school districts from the supervisor exclusion discussed above. The Supreme Court found in PLPSO that because the Legislature expressly authorized in § 48-816(3)(c) that only certain administrators in Class V school districts shall be joined together, the foregoing maxim prevents the application of the exemption to any other class of school district. Applying this maxim to the present case, we find that because the exemption set forth in the second sentence of § 81-1373(1)(g) does not mention conservation officer supervisors and is limited in its application to the State Patrol, conservation officer supervisors are not impacted by the exemption in § 81-1373(1)(g). Moreover, because conservation officers and conservation officer supervisors are not referenced in the second sentence of § 81-1373(1)(g), we do not need to address whether conservation officer supervisors are of a "similar class" to State Patrol sergeants.

      In view of the result we reach, it is unnecessary to consider the State's assignment of error alleging that the CIR erred when it disregarded its own rules by "declining to hold as true the facts stated in exhibits 12 through 164 pursuant to Rule 22."

CONCLUSION

      We find that the conservation officer supervisors and the staff supervisor are statutory supervisors, given their supervisory responsibilities over the conservation officers. Because the contested positions are statutory supervisors, we find that the CIR erred when it included such positions in the Law Enforcement Bargaining Unit set forth in § 81-1373(1)(g).

      REVERSED.